Patna High Court
Jai Chand Singh vs The State Of Bihar Through Collector on 28 March, 2006
Author: Syed Md. Mahfooz Alam
Bench: Syed Md. Mahfooz Alam
JUDGMENT Syed Md. Mahfooz Alam, J.
Page 0806
1. This First Appeal has been preferred against the judgment and decree dated 20.3.1978 passed by Sri Bageshwari Prasad, Sub-Ordinate Judge, Jamui, in Land Acquisition Case No. 10 of 1977 whereby the learned Sub-Ordinate Judge has been pleased to dismiss the reference under Section 18 of the Land Acquisition Act (hereinafter to be referred as "Act") filed by appellant Jai Chand Singh for revision of the award on the ground of inadequate compensation.
2. The brief facts of the case are as follows:
4.06 acres of land belonging to the appellant Jai Chand Singh situated in Mauza Barhat was acquired by the Land Acqusition Officer as per Declaration No. 4R dated 27.5.1975 published at page 119 Part II of Bihar Gazette dated 16.6.1975. The lands were acquired in connection with Kukurjhap Irrigation Scheme, In the proceeding of land acquisition, award was given and under Section 11 of Act, the Collector fixed compensation in the following manner:
For land ..................Rs.8327.06 pa.
15% over that amount.......Rs.1249.06 pa.
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Total Rs. 9576.12 pa.
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Accordingly, under Section 12(2) of the Act, notice was served upon the appellant who made appearance in the proceeding and filed objection on the ground of inadequacy of compensation and made prayer for referring the matter to the Civil Court for final adjudication. Accordingly, the Collector, Munger, made reference to the District Judge under Section 18 of the Act. It further transpires that the appellant in his objection petition has claimed the value of the land @ Rs. ten thousand per acre as the land which was acquired used to yield three crops in a year. It has further been contended that notice under Section 9 of the Act was never served upon the appellant.
3. After receiving the reference, the learned Sub-Ordinate Judge-cum-Special Judge under the Land Acquisition Act asked the parties to adduce evidence and, accordingly, Page 0807 both the parties adduced oral as well as documentary evidence in the case. It further transpires that the Yearned Sub-Ordinate Judge on the basis of the evidence available on record came to the conclusion that the amount of compensation determined in this case by the Collector is definitely inadequate. According to the judgment of the learned Sub-Ordinate Judge, he has assessed the valuation of land @ Rs. 6870/- per acre on the basis of market value and finally he assessed the quantum of compensation at Rs. 27,892.20 paise plus 15% more on that amount but the learned Sub-Ordinate Judge finally came to the conclusion that under Section 25(2) of the Act the claim of the appellant is barred and, as such, he is not entitled to get compensation more than the compensation assessed by the Collector under Section 11 of the Act and, so, the learned Sub-Ordinate Judge dismissed the reference.
4. Against the said order of dismissal the appellant has filed this First Appeal.
5. It is the admitted position that there is finding of the Sub-Ordinate Judge that the compensation awarded to the appellant is inadequate and he is entitled to get compensation @ Rs. 6870/- per acre at market value and it is also admitted fact that no cross-appeal has been preferred by the respondent challenging the quantum of compensation fixed by the Sub-Ordinate Judge and, so, I am of the view that the said finding of the Sub-Ordinate Judge is final. Therefore, before me the only point for consideration is that whether the claim of the appellant is barred under Section 25(2) of the Act or not.
6. According to the submission of the learned advocate of the respondent after service of notice under Section 9 of the Act, it was mandatory for the appellant to appear before the Land Acquisition Officer and to file claim application but the appellant preferred to remain out of the court of Land acquisition Officer in spite of service of notice under Section 9 of the Act and did not prefer any claim within the time fixed under the Act and, as such, his claim for enhanced compensation is barred under Section 25(2) of the Act. In this regard, the learned advocate of the respondent has placed reliance upon the decision (Dilawarsab Babusab Mullasab and Ors. v. Spl Land Acqu. Officer ) and 1968 PLJR 403 (State of Bihar v. Manager, Bettiah Court of Wards Estate, Bettiah ). In both the decisions, it has been held that the provision under Section 25(2) of the Act is mandatory. On the basis of the above two decision, the learned advocate of the respondent submitted that the finding of the learned Sub-Ordinate Judge that as " the petitioner omitted to make any claim pursuant to the service of notice upon him without any reason much less any sufficient reason, the amount awarded by this Court can not exceed the amount awarded by the Collector as the same is barred under Section 25(2) of the Act," appears to be correct and in accordance with law and, therefore, there is no need of any interference in the order of the learned Sub-Ordinate Judge.
7. On the other hand, the argument of the learned advocate of the appellant is that the finding of the learned Sub-Ordinate Judge that notice under Section 9 of the Act was properly served upon the appellant is incorrect and is based on misreading of the evidence. The learned advocate of the appellant further argued that the evidence of appellant who was examined as A.P.W.4 in the proceeding will show that he has categorically denied the service of notice upon him under Section 9 of the Act and when notice was shown to him during cross-examination he deposed that the notice did not bear his signature. The learned advocate of the appellant submitted that in Page 0808 view of the categorical denial of the appellant it was incumbent upon the respondents to get the signature of the appellant examined by an expert and only then the court was competent to come to the finding that notice under Section 9 of the Act bears the signature of the appellant and it was duly served upon the appellant. The learned advocate further referred the evidence of O.P.W.1 Kamleshwari Paswan, who was examined on behalf of the opposite party and submitted that his evidence was not worthy of reliance. He referred para 2 of his cross-examination in which he has stated that he had not obtained the signature of any witness on his service report and has further deposed that he does not know the name of the father of Jai Chand Singh and did not try to meet his father. He further deposed that no one introduced Jai Chand Singh to him. The learned advocate submitted that the above evidence of O.P.W.1 shows that his evidence is shaky and it was unjust to rely upon the solitary evidence of O.P.W.1 on the point of service of notice under Section 9 of the Act.
8. I have gone through the evidence of the appellant who has been examined as A.P.W.4 in this case. From para 3 of his examination-in-chief, it appears that he has categorically stated that he had not received any notice under Section 9 of the Act. Para 5 of his cross-examination shows that when the learned advocate of the opposite party produced the notice before the witness and drew the attention of the witness towards the signature the witness (appellant) categorically denied that the notice bore his signature. So far the evidence of O.P.W.1 is concerned, he is definitely a highly interested witness being process server in the office of the Collector. His evidence that he does not know the name of the father of Jai Chand Singh and that no body introduced Jai Chand Singh to him clearly shows that his evidence is very shaky and, therefore, I am of the view that without taking the evidence of any expert on the point that notice under Section 9 of the Act bears the signature of the appellant the learned lower court should not have held that notice under Section 9 of the Act was validly served upon the appellant.
9. I, therefore, hold that the above finding of the learned Sub-Ordinate Judge is definitely against the material available on record and can not be upheld. Accordingly, I hold that there is no sufficient material on record to hold that notice under Section 9 of the Act was validly served upon the appellant.
10. Since the service of notice under Section 9 of the Act is disbelieved by me, as such, the provision of the Act laid down under Section 25(2) of the Act does not come into play and, therefore, the finding that under Section 25(2) of the Act the claim of the appellant is barred is also incorrect. So far the above two decisions are concerned, both the decisions are based on the fact that notice under Section 9 of the Act was validly served upon the parties and, as such, it was held that under Section 25(2) of the Act the amount awarded by the Court cannot exceed the amount awarded by the Collector. But as I have found that notice under Section 9 of the Act was not validly served in this case, as such, Section 25(2) of the Act will not come into play. Accordingly, the finding of the learned Sub-Ordinate Judge that the claim is barred by the provision of Section 25(2) of the Act is fit to be set aside.
11. I have already found above that the learned Sub-Ordinate Judge has fixed the valuation of land acquired @ Rs. 6870/- per acre and accordingly he has fixed total compensation at Rs. 27892.20 pa. plus 15% more on that amount and against that finding of the learned Sub-Ordinate Judge no cross-appeal has been preferred from the side of the respondent and, as such, I am of the view that the said finding Page 0809 of the learned Sub-Ordinate Judge has become final. It further transpires that the learned Sub-Ordinate Judge has held that after deducting the amount already received, the appellant is entitled to receive further sum of Rs. 22,499.91 .
12. Accordingly, this appeal is hereby allowed and the finding of the Sub-Ordinate Judge that the claim of the appellant is barred under Section 25(2) of the Act is set aside. The total compensation to be awarded to the appellant is fixed at Rs. 27,892.20 plus 15% more on the said amount. Since the respondent has already paid Rs. 9576.12 Pa., as such, the said amount will be deducted from the total compensation payable to the appellant and the rest amount shall be paid to the appellant by the respondent within a period of three months from the date of receipt/production of a copy of this judgment in the court below.
13. In the result, this appeal is allowed but without costs.